Course Level:

Intermediate

Advance Preparation:

Print and review course materials

Method of Presentation:

Live Webcast

Prerequisite:

General knowledge of environmental and energy laws

Course Code:

149294

NY Category of CLE Credit:

Areas of Professional Practice

Total Credit:

1.0 CLE

Matthew L. Bly, Partner
Duncan & Allen, LLP

Brendan H. Connors, Associate
Holland & Knight LLP

SEGMENT 1:

Brendan H. Connors, Associate

Holland & Knight LLP

• In Order 862, the Commission amended its regulations concerning the process for submitting hardcopy filings and submissions.
  • Specifically, it required that non-USPS deliveries should go to an off-site facility for security screening and processing
  • The off-site facility is located at 12225 Wilkins Avenue, Rockville, Maryland, 20852.
  • USPS mail can still be sent directly to Commission headquarters.
  • The Order does not change the process for filing electronic submission. The public is strongly encouraged to follow that route through the Commission’s eFiling application.
  • This rule became effective on July 1, 2020.
• On August 18, 2020, the Federal Energy Regulatory Commission  (FERC) issued an order clarifying its filing requirements in the event its e-filing system malfunctions.
  • If the e-filing system malfunctions on the day of a filing deadline, the filer must e-mail [email protected] summarizing the problem, attaching the public version of the filing, and providing evidence of the timely attempt to file, such as screenshots of error messages.
  • If the e-filing malfunction is not resolved by the 5 p.m. filing deadline, the filer must, at the earliest time possible the following business day, either e-file the submittal or file a hard copy at the off-site screening facility, whichever is the most expedient.
• While Order 862 does not affect electronic filings, it may pose complications in FERC cases where hard copy filings or hand deliveries are necessary.
  • For example, certain types of maps, drawings, engineering data and economic models can exceed the eFiling portal’s size or formatting limitations and must be provided in hard copy.
  • FERC practitioners and other entities seeking to send submissions using carriers other than USPS or to hand deliver submissions via a messenger service or in person, should therefore plan accordingly to avoid missing the 3:30 PM cutoff at the screening facility, which is approximately 12 miles from FERC’s downtown D.C. headquarters.
• FERC filers should also consult the FERC filing submission guidelines provided on the Commission’s website. It includes:
  • Formatting Instructions for electronic and paper documents;
  • Instructions for filing CEII, Privileged, or Protected Material; and
• General Instructions and recommended practices for eFiled and CD/DVD submissions.

SEGMENT 2:

Matthew L. Bly, Partner

Duncan & Allen, LLP

• As a general rule, FERC makes everything more difficult than it needs to be, and this is especially true when it comes to complying with FERC’s filing requirements. [Important caveat: The people who work at FERC are extremely helpful and responsive if you reach out to them directly]
  • For example, the “FERC Online” section of the FERC.gov website indicates that it was “last updated on December 29, 2020,” which is nearly six months after Order No. 862’s effective date of July 1, 2020.  Nonetheless, this FERC Online webpage continues to include a significant amount of information that is directly contrary to the filing requirements FERC implemented in Order No. 862.
    • Important guidance documents that address the how/when/where of FERC filings, including guidance documents such as the “Filing Guide and Qualified Documents List,” “Quick Reference Guide to FERC Filing Procedures,” “Your Guide to Electronic Information at FERC,” “Requirements Relating to Filings & Comments,” and “Address List for Staff Copies of Certain eFiled Documents” continue to advise would-be filers that “The original of paper filings should be hand delivered or addressed to Federal Energy Regulatory Commission, 888 First St. NE, Washington, DC 20426.”
• My actual experience submitting a paper filing in compliance with Order No. 862.
  • How long it took to travel to 12225 Wilkins Avenue, Rockville, Maryland 20852 and how quickly the off-site facility was able to log and time-stamp my filing.
• FERC’s August 18, 2020 Clarification Order to Order No. 862 is a trap!
  • Practitioners should develop a plan for their FERC filings that bakes-in more than enough time to ensure they never have to resort to relying on the uncodified, multi-step, and concerningly subjective back-up filing practice FERC described in the Clarification Order.

• Energy Regulatory Lawyers
• FERC Compliance Officers
• Directors and Officers
• Corporate Counsel